Disillusionment within the England and Wales judiciary was laid bare by the findings of the UK Judicial Attitude Survey in February this year. Pay freezes, pension cuts and increased workload have evidently soured the mood at the bench.
The survey, carried out by the UCL Judicial Institute, indicated that 86% of judges who had been in the post for at least five years believed that working conditions had worsened since 2010. And nearly a third of judges are considering leaving their positions early in the next five years. Perhaps even more worryingly, a high proportion of judges said that reduced pension benefits (76%) and a reduction in income in real terms (69%) would discourage people from joining the bench.
Some 200 judges are currently suing the Lord Chancellor and the Ministry of Justice for age, sex and race discrimination, following the decision to offer lower pensions to those born after 1 April 1957. The claims are based on the fact that those born before 2 April 1957 are naturally older and more likely to be white and male.
Top barristers, who would traditionally be tapped on the shoulder and proudly take a seat on the bench, must now go through a formal application process. Anecdotal evidence suggests that even those regarded by colleagues and peers as prime judicial material are regularly rejected. The honour of a place among the judiciary has faded, with many top silks choosing to stay at the Bar or take an alternative career path. Jonathan Sumption QC, who was appointed as a Supreme Court judge in 2011, was arguably the last elite silk to step up to the bench.
The findings of the survey are a culmination of years of deteriorating morale. Back in 2012 at a law conference hosted by 5RB, Mr Justice Tugendhat, who retired in 2014, highlighted the mounting working hours that the judiciary was forced to contend with, suggesting that High Court judges in the Queens Bench Division (QBD) have to routinely work 50 to 60 hours per week. Complaints have circulated that judges are now burdened with too much administrative work.
The perception of an overworked and at times erratic judiciary worsened this year when Mr Justice Peter Smith had to recuse himself from the recent air cargo price-fixing case in the High Court, following repeated questions to BA’s counsel regarding his own lost luggage.
Seeking an exit
Sir Bernard Eder QC, a distinguished High Court judge who was assigned to the QBD and the Commercial Court from 2011, retired from the bench in April this year. Eder, 62, has since re-joined Essex Court Chambers as an arbitrator and has become a judge at the Singapore International Commercial Court (SICC).
Speaking to Legal Business, Eder was unwilling to give reasons for his resignation, but is clearly relishing an alternative career path: ‘The Singapore government and legal authorities there have invested a huge amount of effort in setting up the SICC and the system of arbitration. They are doing everything possible to ensure that Singapore has the necessary legal infrastructure; and I have no doubt that their aim will be fulfilled.’
Rix has lived through a substantive period of reform, which has included the introduction of Lord Woolf’s Civil Procedure Rules and the launch of the Supreme Court. He says that top silks used to happily accept a more leisurely working week when joining the bench, and a more modest income, but he suggests that judges no longer have the luxury of the odd long lunch and a sleepy afternoon: ‘The administrative demands have put great pressure on judges and taken them away for a large part of the time from judging, which is their job. It’s just as well perhaps that the Woolf Reforms have cut down on litigation, because if we had litigation in the same numbers as in civil law countries we certainly couldn’t manage with the small senior judiciary that we have in Britain. I’m not sure that barristers, who provide the bulk of the judiciary, are so experienced in management and administration. Solicitors are more experienced as managers.’
Politics and the appointments system within the judiciary have clearly irritated and frustrated in equal measure. When Sumption QC was appointed to the Supreme Court in 2011, it was reported to have upset a number of long-serving and arguably more deserving judges.
Turning down the bench
With the judiciary coming to terms with longer working hours, modest salaries compared to private practice, and less attractive pension arrangements, it is understandable that many barristers are reluctant to wear the longer wig. An experienced silk at one of London’s leading chambers agrees that barristers are much more circumspect about moving over to the bench than before: ‘It is much more common for members of the Bar to stop and think about their options. It is not as automatic as it used to be. I know of people turning down the opportunity to apply. I personally know of a number of individuals who have decided it is not for them. They are people who you would have expected to go from the Bar to the bench.’
The growth in alternative dispute resolution (ADR) and the options to become an arbitrator, adjudicator, conciliator or perhaps a mediator, have certainly provided an alternative and often lucrative career path for silks seeking another route into retirement.
Even so, the best legal minds are clearly not always willing to make that move. Lord Pannick QC, a silk since 1992, remains a highly acclaimed figure at the Bar and a crossbench peer. Similarly, Lord Grabiner QC, a silk since 1981, and a hugely respected presence at One Essex Court, is a Labour peer. This year, Timothy Kerr QC and Richard Snowden QC were the only two of the more prominent silks to become judges. Judges are still prohibited from returning to private practice and for some the financial disincentive to join the bench is just too strong. Privately, many barristers believe this dynamic is slowly impacting on the quality of the bench.
There is, of course, the argument that fewer top silks joining the judiciary may encourage greater diversity within it. Years ago, the leading chambers were heavily populated by the offspring of the judiciary. They in turn moved to the bench, meaning that generation after generation of the same family would serve within the judiciary. This is clearly no longer the case and with the bench forced to look to a greater talent pool, containing some whose income is similar or even less than a judge’s salary, it will also become a more heterogeneous and publicly representative institution.
Deborah Finkler, head of dispute resolution at Slaughter and May, has confidence in its standards: ‘Is the quality of the bench worse than 20 years ago? I don’t buy that actually. I don’t think that the people who make the best judges always went to the bench. While I often disagree with them, it would be fair to say that judges are as good quality as the average judge 20 years ago.’
The quality debate will rage on; what is unquestionably true is that for the some of the most experienced and respected barristers, a place on the bench no longer holds the same cachet.